Hassan v Gill [2012] EWCA Civ 1291

Case No B3/2011/2555[2012] EWCA Civ 1291
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE BAILEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 24 th July 2012
Before
LORD JUSTICE LLOYDMR JUSTICE MORGANSIR STEPHEN SEDLEY
Between
HASSANRespondent/ClaimantGILLAppellant/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Kenneth Hamer (instructed by SA Law LLP) appeared for Appellant.Alexander Campbell (instructed by Bird & Lovibond) appeared for Respondent.
Judgment
[1]This is an appeal by the first defendant, Mr Onkar Singh Gill, against an order of HHJ Bailey, sitting in the Central London County Court, made on 14 September 2011 at the end of a three-day trial of a claim by the claimant, Mrs Samera Hassan for damages. She had suffered injuries through slipping while she was shopping at The Stall in Greenford Road, Greenford, on 13 November 2005. By the order, Mr Gill was ordered to pay to the claimant damages of £111,859, plus interest and costs, with £20,000 to be paid on account. At the trial, there were three issues: negligence, quantum, and whether Mr Gill was the right defendant, or whether the correct defendant was a company, the second defendant, which he had set up. All points were decided against Mr Gill. Quantum is not challenged. Mr Gill sought to appeal on the issue of whether he was the right defendant, but permission to appeal was refused on that both on paper by Dame Janet Smith and on the oral renewal by Longmore LJ. Longmore LJ gave permission to appeal on the issue of negligence, so that is the ambit of this appeal.[2]The Stall is a greengrocery business which belies its description. Once upon a time, it was a stall properly so described, but at some point, following the date in the mid-1990s when Mr Gill started running the business, it developed so as to have a substantial enclosed area in the nature of an ordinary shop, although it does still, as it already did, extend out onto the pavement, by licence from the local authority. There it shares the characteristics of a traditional stall. However, it is now mainly a shop, and although customers come, as the claimant did, to look at and select produce from display tables arranged along the frontage of the shop before going into the shop, where Mr Gill hopes that they will choose other fruit and vegetables, they have to go into the shop because it is only within the shop, near the exits, that the cash tills are to be found where they pay for produce.[3]Mrs Hassan had been a regular customer of The Stall for a good many years. On the day in question, she had already shopped at a nearby Tesco and she went along to The Stall to see if there was anything there that she wanted to add to her purchases. It was a dry day. The judge recorded that she was wearing sensible shoes. She was then a lady of some 57 years of age. She looked at the fruit displayed on the tables, the display areas in the pavement area. The photographs in the bundle show that the frontage to Greenford Road was quite long and allowed the display of a lot of different fruit available for sale. Mrs Hassan walked to the end of the pavement display area. At or around there she slipped and she fell forward onto the pavement, causing the injury for which she brought this claim. It turned out that she had slipped on some grapes which were lying on the pavement. Her fall drew attention to them, presumably for the first time, and a staff member then cleaned them up. Another staff member assisted Mrs Hassan following her fall, lifted her up, sat her down inside the shop, and offered to call the hospital. She preferred to call her husband, who came in due course, and matters proceeded from there. She was then taken to hospital. She was found to have fractured her wrists, and thereby she suffered both physical injury and consequent loss. That is the damage for which she was to be compensated by the judge’s order.[4]The judge directed himself on the negligence aspect of the case at paragraph 7 of his judgment in general terms, and in terms which Mr Hamer for the appellant does not criticise in themselves. He said this:
“Plainly, a shopkeeper will not be responsible for any fruit or vegetable that is allowed to fall to the ground by a shopper, although of course he will be responsible for any such fall coming from the carelessness of a member of his staff. But a shopkeeper must be conscious of the risk that fruit or vegetables will fall to the ground. He must institute a reasonable system to identify and clear up the hazards that are created by fallen fruit and vegetables. A shopkeeper is not liable immediately any fruit or vegetable falls to the ground, but as I have said he must institute a system which is capable within a reasonable time to identify such hazards and have them cleared up.”
What is said to be the judge’s error lies essentially in two points, according to Mr Hamer’s submissions. First, in his holding that, on the facts, the defendant’s system was clearly reactive and described as “clear when spotted”; and secondly, to hold that this was not enough as a matter of law. Given the twofold challenge to the judgment, it is necessary to pay attention to how the case was put and how the evidence went.[5]The claimant alleged that her fall was caused by negligence in several respects, including causing or permitting the grapes to be on the pavement and to remain there; and causing, permitting or suffering the existence or continuance of a danger. That, if made out, casts an evidential burden on the defendant. The defendant sought to meet it as a matter of pleading at paragraph 3.5 of the defence, in which it was alleged that at all relevant times the operator of the store instituted and operated a reasonable system to ensure that the premises and the adjoining area was safe to both visitors and passersby. Particulars were given, including that all staff were instructed to and trained to keep a watch out for spilled produce that could cause a slipping or tripping hazard, and that at least one member of staff would be positioned on the outside of The Stall, and so would be able to spot any spilled produce. Such produce would be pushed under the stall out of harm’s way. It was said that the matter of which the claimant had complained had not been reported to the defendant or to any staff employed at The Stall prior to the accident; the spillage had not been observed by any member of staff prior to the accident; and in the premises, there was insufficient time to take any avoiding action. That does not, therefore, allege anything other than a reactive system, save to the extent that staff were trained to keep a watch out for spilled produce and that there would be one member of staff in the relevant area who would be able to spot any produce spilled in that area.[6]The defendant’s first witness statement set out the point in very general terms at paragraph 5:
“It was emphasised to all staff that they had to keep a close eye on anything that fell on the floor, and to sweep it aside as soon as it was spotted, either under the counters or picked up and disposed of.” “As far as, like, sort of having rules for cleaning the shop floor so nobody fell, is basically everybody is taught to do that, it is second nature. It is not just common sense, but they are told, you know, when we run them through the business how to fill up produce, and what happens if produce fell on the floor. Everything was well drummed into them. Question: Yes, if they see something pick it up? Answer: Yes, yes.” “With regard to cleanliness, all sections always had their own designated, labelled four-foot brooms and a labelled dustpan and brush. A larger broom was used to sweep the entire shop four to five times a day, and the smaller ones to be used locally when the person in that area felt the need. In addition, I was always around to pick up on any issues which went unnoticed. I did not specifically go looking for them. My main job was to make sure the shelves were replenished, the queue was moving, the quality of goods was desirable, but instinctively any potential hazards lurking would catch my eye. As a rule, I would always get the staff to deal with it instead of doing myself. It was all part of instilling my own values into the staff, so that in future they would know to do it without being prompted by me.” “I can never guarantee that there would not be fruit on the ground where a customer has spilled it, but I can guarantee that either I or one of the other staff at The Stall would spot it and deal with it very quickly. It just cannot be missed.”

Question: Yes, if they see something pick it up?

[7]In his oral evidence, the son said something about this aspect of the matter in supplemental evidence-in-chief. The question was this:
“Question: Was there any practice in relation to any fruit or vegetable which did get onto the pavement? Answer: We had two different -- we had what I in my own terms used to call the Display Manager. Usually, that would be me. But I also had another member of staff who I could say, ‘Look, if I am out, you are the Display Manager.’ [...] He would sweep up the shop at the front and the inside, regardless of what the state was, four or five times a day. That was with the larger broom, but every department such as the area outside had their own four-foot broom. [...] They were told, ‘If you see something, even if the Display Manager has not come out and swept it up, if you see something you sweep it up.’”
Mr Sundeep Gill was cross-examined at length, but not on that particular aspect of his evidence.[8]Thus, the defendant’s pleaded case was that staff were instructed to keep an eye open for spillages, and to clean them up when they were spotted, and the evidence of Mr Sundeep Gill added the one further factor that the Display Manager, who might be him unless he was not on duty, would sweep the entire shop with a large broom four or five times a day. This was not the subject of any detailed evidence from him as to what he actually did, so the evidence is at a high degree of generality. If, as might be the case, the shop was commonly open for 10 or 11 hours a day, then sweeping four times a day, if it were at exactly regular intervals, which was not suggested, would take place about every two and-a-half hours or if five times a day would take place every two hours.[9]The judge described the defendant’s system at his paragraph 9, and did so altogether fairly, except that he did not refer there, or indeed elsewhere in his judgment, to the evidence of the premises being swept with a large broom four or five times a day. His summary is at paragraph 10:
“The system thus described by Mr Sundeep Gill is a clear-up when spotted system. It is purely reactive. The staff, and it appears that the business employed several staff, maybe as many as six to eight staff, would have a number of duties to fulfil as they went around about their other duties. They were, in effect, told ‘If you see something hazardous, clear it up’.”
That is a proper summary of the position but for, as Mr Hamer submits, his failure to mention the non-reactive sweeping of the entire premises four or five times a day. I will come later to the significance of that factor. He then went on at paragraphs 11 and 12, which are of particular significance: “11. On the authorities, that is not a sufficient system. It is not sufficient to discharge the duty on the shopkeeper to take reasonable steps to ensure that his customers, and indeed the passers-by on the pavement, are protected from the foreseeable hazard of fruit and vegetables on the ground. The onus to an operator of a business such as this should have instituted a system whereby a periodic check was undertaken of the floor in the shop and the pavement outside. What has been described in other cases as ‘walking inspections’ should have been instituted to check spillages posing a hazard. Such walking inspections should of course be followed by clearing up the spillage, or at least by the placing of warning signs if no immediate action can be taken to clear up the spillage.[12]It is not the law that there has to be a continuous walking inspection of all parts of the floor of the shop premises. Nevertheless, depending upon the volume of business being undertaken by The Stall at any particular time, the defendants should have had periodic walking inspections.” In paragraph 13, he referred to a previous incident of a different kind which had taken place in the warehouse, the breaking of a pallet in the course of operating a lorry, which had led to a visit from the Health and Safety Executive and to a review of the shop’s procedures, training procedures and record-keeping. That was really a rather separate matter. He concluded this part of the judgment, before proceeding to quantum and the identification of the right defendant, at paragraph 14, which is as follows:
“Not only was there no proper system in operation, there has been no evidence from members of staff as to the effectiveness of the clear up when spotted system. It is quite impossible for anyone to say how long the grapes that were responsible for Mrs Hassan’s fall were on the pavement. In the absence of a proper system, I must find that the appropriate defendant, a matter to which I must return, is liable to Mrs Hassan for the injuries she sustained in that fall.”
[10]So far as the evidence is concerned, I have mentioned the evidence of the first defendant and his son, Sundeep Gill. That was all there was for the defendants. As appears from what I have read and mentioned, it was quite limited and rather general in its nature. There was no detail as to the deployment of staff. As regards the number of staff, the first defendant said in his first witness statement that typically there would be six employees and himself on duty, three of whom were cashiers, and clearly they would not be watching for spillages, and there would be three other employees who would fill up the shelves with produce. Mr Sundeep Gill, the son, said in the course of his witness statement at paragraph 15 that there would always be at least two cashiers, and at least two other staff who were walking round the shop making sure that there were no problems and that everything was in order while they were replenishing the shelves with produce. These staff had responsibility for different parts of the shop, of which the outside part on the pavement was a discrete area which would be within the responsibility of one particular staff member at any given time. At paragraph 25, he said:
“Typically, at busy times we would have three cashiers at the tills, and an additional three other people on the shop floor keeping the stock topped up, and the exact number of staff would obviously fluctuate from time to time.”
In the light of this evidence, which was not elaborated on or modified in cross-examination as to what staff there were, what their duties were and what the system was so far as it went for dealing with spillages, I turn to the law.[11]The starting point is a judgment of Lord Goddard, Lord Chief Justice, sitting in the Queen’s Bench Division at first instance in Turner v Arding & Hobbs Ltd [1949] 2 All ER 911. This has been much cited in subsequent cases. It identifies that the shopkeeper is under a duty to use reasonable care to see that the shop floor on which people are invited is kept reasonably safe, and if an unusual danger is present of which the injured person was unaware and the danger is one which would not be expected and ought not be present, the onus of proof is on the defendants to explain how it was that the accident happened. Later he said, at page 912:
“Assistants cannot be expected to walk behind each customer to sweep up anything he or she may drop, and if this accident had happened at a very busy time when the shop was crowded with people, I can well understand that it would be difficult to say that the defendants were negligent because something had got on the floor which they may not have had the opportunity to sweep up. Here, however, I think there is a burden thrown on the defendants either of explaining how this thing got on the floor, or giving me far more evidence than they have as to the state of the floor and the watch that was kept on it immediately before the accident. I do not mean that it was their duty to have someone going around watching it, but in a store of this sort into which people are invited to come, there was a duty on the shopkeeper to see that his floors are kept reasonably safe.”
[12]That shows the forensic process whereby the claimant shows that she slipped on something that ought not to have been on the ground, and an evidential burden then shifts to the defendant to show that he took all reasonable steps to see that the floor was kept reasonably safe, the details of such reasonable steps clearly depending on the circumstances.[13]That decision was followed and applied by the Court of Appeal in Ward v Tesco Stores [1976] 1 WLR 810, Megaw and Lawton LJJ in agreement, Ormrod LJ dissenting. In that case, the system of which evidence was given was, first of all, that if any staff member saw the spillage, he or she should stay where it was and summon someone to clear it up and remain there until it was cleared up; and secondly, a system whereby the floor was brushed five or six times in the day as well as, of course, a general cleanup overnight, but with no evidence as to how long before the slipping accident the floor had last been brushed. There was also, as Mr Hamer pointed out, evidence of there being some ten spillage or breakage occurrences each week whereby liquid that ought not to be on the floor came to be there. Lawton LJ at page 814 C said:
“The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff.”
He then cited from Goddard LCJ’s judgment the passage from which I have cited, and held that the appeal should be dismissed. Ormrod LJ disagreed, but Megaw LJ agreed with Lawton LJ and so the appeal was dismissed.[14]Although not setting out a principle other than in general terms, and apart from endorsing what Lord Goddard had said in the earlier case, that is a case in which it can be said that, in the context of evidence of regular spillage occurrences, the judge held (and the Court of Appeal did not disagree) that a system of, first of all, call a cleaner when you spot a spillage, and secondly, five or six general cleanings of the floor during the day was not enough in that particular store.[15]In Jacob v Tesco Stores (19 November 1998, unreported) the claimant was an employee, a checkout supervisor. The judge in a county court had found that the defendant was negligent. The defendant argued that the judge had treated Ward v Tesco as a factual blueprint, but Henry LJ said that the principles were helpful in defining the issues and that the judge had not gone wrong on that. Tesco had called witnesses from the shop floor in that case to explain the system, which was, as it had been in the case of Ward:
“If you see a spillage, you stand watch over it until a cleaner comes to make it safe.”
According to Henry LJ, there was no evidence of any other aspect of the system. This particular spillage occurred in a checkout area not currently being used, which was therefore not likely to be spotted by staff because it was not in use, but was likely to be used by staff possibly in a hurry round the store. There, the judge had held that a proper system would have given responsibility for earlier detection of spillages to some individual with the task of walking the floor from time to time. Henry LJ said at the end of his judgment that, given that the nature and the location of this particular spillage, it would not readily be spotted by staff, whereas if there had been a system of walking inspections, the spillage should have been detected earlier. This is probably the source of the judge’s reference at paragraph 11 of his judgment in the present case to “walking inspections”.[16]It is not the law that anyone in charge of any retail premises to which the public are invited must have a proactive system of walking inspection or the like. I do not consider that the judge meant that that was the law. The precautions required of a reasonable system must depend on the circumstances of the particular premises, including for example its size and other physical features, the nature of the goods stocked, the number and nature of the staff, and the number and perhaps nature of the customers. Here, it seems to me that the judge was holding that, given the circumstances of these particular premises, The Stall in Greenford Road, the likelihood of fruit being dislodged from the tables and display boxes, falling to the ground and causing a slipping hazard, and thereby a danger to the customers, and also given the relatively small number of staff, even if there was one on the pavement most of the time, that this was not enough by way of reasonable precautions to see that a slippage hazard did not remain in place on the ground for too long.[17]In his extempore judgment, delivered as I say on the third day of the trial shortly after the end of counsel’s submissions, it would in my view be absurd to read the first or second sentence of paragraph 11 of the judgment, which I have already read, as setting out a general categorical principle of law. Rather, it introduced the passage which followed, up to and including paragraph 14 in which he explained, for the reasons that he there gave, why the system that he had described in the previous paragraphs, and summarised at paragraph 10, was not sufficient in the present case. The word “it” at the beginning of the second sentence of paragraph 11 is not entirely general. It is not a statement of a general principle that no shopkeeper does enough by using a purely reactive system. The word “it” clearly refers back to the word “that” in the first sentence, in the context “that is not a sufficient system”. That word in turn clearly refers back to the system which he has just summarised at paragraph 10.[18]One point that seems to me to be particularly telling is the point made by the judge near the beginning of paragraph 14, namely that there was no evidence from members of the staff as to the effectiveness of the system. The first defendant, as I say, was certainly not present at The Stall on 13 November 2005 and Mr Sundeep Gill, his son, may or may not have been there, but clearly there will have been staff there. We know of two members of staff who were, I was going to say “involved” in the accident; that is the wrong word. The judge at paragraph 3 records that, following the fall and following the claimant having been helped to her feet by another customer, she was attended by one of the staff working at The Stall who came to her assistance, offered her a seat and offered to telephone for an ambulance, and he was someone whom the claimant said she thought she recognised, an Indian gentleman in his 20s. The judge also referred to the fact that another member of staff cleaned up the grapes, which she had then noticed as being the cause of her fall. Indeed, in the following paragraph the judge refers to Mrs Hassan paying compliments to the staff, who offered to help her get her vegetables and showed concern for her condition. So clearly, there were two or possibly even more members of the staff working at the premises on that day who paid particular attention to the claimant following the fall and who may have had some recollection of the events if they had been asked soon enough after the accident.[19]It is true, as we were shown, that the first letter before action, which seems to have been the first intimation of any claim arising from this incident, did not arrive until June 2006; and it is also true, but this cuts both ways, that no record was made in the shop’s incident book at the time of the accident. It is also true that the proceedings were not started until the summer of 2008. But there is no evidence from the defendant or his son of any attempt to identify, trace or contact any person who had been working at The Stall in November 2005 who might have any recollection of the occasion. And that being so, it seems to me that the judge’s comment as to the absence of evidence from staff is, as I say, telling.[20]We were shown, incidentally, a recent judgment of the Court of Appeal in a case very different indeed on its facts, Dawkins v Carnival Plc T/A P&O Cruises [2011] EWCA Civ 1237, where a passenger on a cruise liner had fallen in an area called the Conservatory Restaurant on some liquid, probably water, the issue being how long the water had been there. In the judgment of Pill LJ, which I need not quote, attention is given to the fact that there was a very large number of staff present in that area to assist passengers, with the expectation that any spillage would be picked up almost instantaneously, and Pill LJ said that the absence of evidence from one or more of the many members of staff claiming to be present in that area at the material time was remarkable.[21]In the present case, the absence of evidence from staff who had been, or may have been, working at The Stall on 13 November 2005 may not be so very remarkable, but what is remarkable is that there is no evidence of any attempt to identify or trace any such person and, whereas it may be that there may be that there is a rapid turnover of staff, there is not even any real evidence of that, and whatever evidence there might be, one would expect there to be some evidence of attempts to identify them. As it happens, the evidence on a different point, namely the identity of the correct defendant, included some employment records including P60 forms. So clearly someone had some record of former employees, which would have been one way of trying to find someone who had been present on the ground, so to speak, and had a recollection of the incident.[22]On that subject Mr Hamer, for the appellants, pointed out correctly that, in the case of Ward and in some other of the cases that were cited to us or to the judge, there was a known history of incidents or spillages, whereas he said there was no known history in the present case. It seems to me that at least two points can be made by way of comment on that. One is that, since not even the incident in November 2005 was recorded in the shop’s incident book, one simply has no idea whether there had been any previous incidents. But secondly, and more importantly, both father and son realistically accepted, as their evidence indicated, that there was a risk of fruit getting onto the ground and that, if it did, it could cause a hazard and that staff were instructed to deal with it promptly. There was no question in that context of the defendants saying, and indeed they did not say, that this was not a risk for which they needed to have a proper system to deal with it.[23]Mr Hamer placed some emphasis, as I said, on the judge’s failure to mention the role of the Display Manager, according to Mr Sundeep Gill, of sweeping the shop four to five times a day. I cannot regard that as significant: first, in the absence of any evidence as to what actually happened; and secondly, because the reference to “four to five times a day” does not suggest that it was part of any clear or prescribed system. Unless the instructions to the Display Manager were that the sweeping was to take place at stated intervals, a very long time could elapse between any two sweepings, even assuming that it was in fact done at least four times every day. The absence of evidence undermines what is in itself no more than a rather limited precaution, especially in respect of the pavement, and one can recall that Mr Sundeep Gill said that he was himself the Display Manager most of the time. That may have explained why there was no record of such an instruction, because it would have been an instruction to himself. But the absence of any such instruction or any such recorded statement (and I note that there was a page in his training manual devoted to the tasks of the Display Manager) suggests that this was not part of a prescribed system, but rather something which he expected would happen as a matter of course during the day, but not necessarily at prescribed intervals, and probably more from the point of view of preserving the appearance of the premises and its tidiness than directed towards hazards such as fallen fruit.[24]As to Mr Hamer’s main point, I do not accept his argument that the judge considered that the detail of the duty incumbent on the defendant, the shopkeeper, was prescribed by the decided cases. He obtained guidance from those cases and rightly so, but at paragraphs 11 to 12 it seems to me that what he was doing was applying that guidance to this particular shop. The judge was well aware, as this court is, that the obligation on the shopkeeper is only to have in place and in operation a reasonable system which should identify and remove hazards within a reasonable time. The defendant is not under anything like a strict liability, but it is incumbent on the defendant to adduce evidence of what the system is, or rather what it was at the relevant time, and how it operated or was applied at the relevant time. What that evidence will be may depend on the circumstances, and as I say a claim notified late or very late may pose forensic problems for the defendant. Even in such a case, it is likely to be wise at the very least for the defendant to attempt to identify and trace relevant members of staff and, if unable to find any such person, to say so, in order to be able to rely convincingly on indirect evidence of the system which would have been in operation and would have been applied in such and such a way at the relevant time.[25]For those reasons, I would reject the defendant’s appeal. Despite Mr Hamer’s attractive eloquence, in my judgment HHJ Bailey did not misdirect himself in law at paragraphs 11, 12 or 14, nor did he make any factual findings that were not justified by the evidence in saying what he did in the course of his judgment on this issue. Mr Justice Morgan I agree. Sir Stephen Sedley:[27]I also agree. Mr Hamer is right to stress that there is no principle of law which requires a defendant in a public liability and negligence action to establish a proactive system, typically a walking inspection procedure, for obviating risk to the public. Here, for example, the belatedly suggested system of sweeping up four or five times a day, that is roughly every two hours, was less likely to prove adequate than a properly arranged and functioning reactive system. If the defendant had called enough evidence, in practice evidence from employees, to satisfy the judge that, because spillages were promptly cleared up, the grapes could not have been on the ground for more than a very short time, he could have expected to succeed. It was, after all, not the defendant’s fault that the claimant intimated no claim for seven or eight months. But it was the defendant’s fault that no entry was made in the accident book that would have enabled the staff present on the occasion to be traced and called.[28]The judge was thus left with an accident caused by a hazard in the highway emanating from the defendant’s shop, with no satisfactory evidence that the defendant had done all that could reasonably be expected to ensure that it was cleared up promptly.

Order

Appeal dismissed.

Cited in 1 later judgment